New South Wales’ new sexual offence laws

On 1 June 2022, the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW) (Act) came into effect, implementing changes to the Crimes Act 1900 (NSW) (Crimes Act) in relation to certain sexual activities that are sexual offences, in the absence of consent.

The reforms aim to strengthen NSW laws surrounding sexual consent, as part of the NSW Government’s commitment to improving responses to sexual assault and sexual harassment by emphasising the need for affirmative consent and broaden the type of sexual conduct which is criminal. These reforms were made in the context of the Coalition of Australian Governments’ 2019 endorsement of a plan to prevent sexual harassment and sexual violence before it happens through national initiatives to promote informed consent.

What does this mean for employers?

Employers should be aware that, as a result of these changes there is a greater risk of criminal liability for the perpetrator of sexual conduct without consent in NSW, which increases employers’ responsibility to act appropriately in relation to the perpetrator’s employment if the conduct occurred in the course of employment. Employers will also need to ensure they comply with their obligations under the Crimes Act to report certain sexual conduct in relation to a wider range of conduct. It is also worth noting that acts other than sexual assault, such as indecent exposure, stalking and obscene or threatening communications, may be offences under criminal law and in some circumstances must be referred to Police.

What are the changes?

The amendments in the Act include the following:

• non-resistance: the amendments confirm that a person who does not offer physical or verbal resistance to a sexual activity* is not taken to consent by reason of their non-resistance; and
• circumstances where there is no consent: the Act provides certain circumstances where there will be no consent to a sexual activity*, including if a person:
• says or does nothing to convey consent;
• is so affected by alcohol or a drug they are incapable of consent;
• consents because of coercion, blackmail or intimidation (regardless of whether it is a single instance or an ongoing pattern of coercion, blackmail or intimidation); or
• consents because they are overborne by the abuse of a relationship of authority, trust or dependence.

*The Act amends the Crimes Act so that ‘sexual activity’ means sexual intercourse, sexual touching, or a sexual act for the purpose of the amendments referred to above.  A ‘sexual act’ means an act other than sexual touching, carried out in circumstances where a reasonable person would consider the act to be sexual. Factors to be considered include:

• whether certain specified areas of the body are involved;
• whether the person carries out the act for the purpose of obtaining sexual arousal or gratification; or
• whether any other aspect of the act (including the circumstances) make it sexual,

The Act also effectively places the onus on the accused person to take steps to identify consent ‘within a reasonable time’ before or at the time of the sexual activity, except for very limited circumstances relating to mental or cognitive impairment of the accused.  

Although it remains to be seen what impact these new laws will have on a workplace sexual harassment claim, it is likely to expand the type of conduct that will be found to constitute sexual harassment and employers should ensure that conduct which could constitute a criminal offence in NSW is dealt with appropriately given the seriousness of the offence.